Sarah Miller: Mackey mess is Newell’s fault
May 29, 2018
For more than three years now, stories surrounding Sheriff Deputy Jason Mackey and his search warrants have filled the pages of this newspaper. Nevada County District Attorney Cliff Newell and his challenger Glenn Jennings have sparred over the issue during the current DA's race.
It's a complicated situation. I went to every DA forum and have talked to both candidates, and I still have questions. But one thing is clear: the person responsible for the persistence of this drama is Cliff Newell.
Back in May 2015, Mackey was summoned to court regarding a search warrant he had written that January. The defendant's attorney wanted to unseal the warrant and question Mackey about a confidential informant cited therein. Jennings, then Newell's Assistant DA, was about to prep Mackey for court, but never did, because Mackey told Jennings, "I can't take the stand."
Disturbed by the implications, Jennings dismissed the case, and he and Newell agreed they should begin an investigation into Mackey. Jennings and a DA investigator interviewed three sheriff's deputies who all said they'd be wary of signing warrants written by Mackey. As the next step in the investigation Jennings drew up a plan to unseal all of Mackey's warrants.
But thanks to Newell, the warrants were never unsealed. A few days after Jennings put his plan together Newell met with Sheriff Royal, Mackey's boss. Newell then abruptly stopped the DA investigation into Mackey, stating that an Internal Affairs investigation was the proper way to proceed. That an IA investigation was called for was no reason to end the DA's investigation. If anything, it was confirmation that a DA investigation was warranted.
Newell continued to follow the sheriff's lead. With Mackey on "rehabilitation" Newell agreed with the sheriff's office that it would be good "training" for Mackey to write every single warrant under supervision, a highly irregular practice. Then, without any official end to this bizarre arrangement, Mackey began to write his own, unsupervised warrants, which Jennings refused to sign. According to Jennings, in October 2015, Newell asked him to sign a document saying their office had done a complete investigation of Mackey and found no wrongdoing. Newell denies this. Jennings, who quit the office after this incident, has testified to it under oath.
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Newell's mishandling of the situation would continue when he failed to fulfill his constitutional obligation to fully inform defense attorneys of the Internal Affairs investigation into Mackey. Defense attorneys were being partially and haphazardly informed that there was an open IA investigation but without any concrete information on how their clients might be compromised by Mackey's warrants or reports; all they could do was complain and write motions.
They did both in abundance, triggering Newell's next mistake: meeting with judges overseeing Mackey-related cases without defense counsel present. To hear him tell the story, he was just trying to help, trying to be transparent. But foisting his own constitutional obligations on the court was neither helpful nor transparent: It was obstructionist. A full year and a half would pass between the day Mackey said he was unable to take the stand and the day the contents of the DA's investigation would be released to defense counsel. They should have been informed immediately. While they were busy filing motions and fighting to get information that should have been supplied to them as a matter of course, Mackey was still writing warrants and reports.
Newell's neglect of his constitutional duties would have long-lasting effects. A few weeks ago, a judge ruled that one of the warrants Mackey wrote in September 2015 contained "false and misleading" statements. More litigation is pending. One wonders if Mackey, and this community, might have fared better with the DA looking into him for a few weeks, rather than the courts and media looking into him for years.
Throughout the campaign Newell has tried to pin this debacle on Jennings, to suggest that if only Jennings could have gone into court with Mackey that day back in 2015 it would have straightened everything out.
Newell told me the Mackey warrant situation has been "politicized for personal gain." Sadly, it is indeed so complicated people can be forgiven for agreeing, for seeing it as a big mess, with what our president might call "good people on both sides." At the Nevada County Democrats District Attorney Forum, moderator Fran Cole legitimized this interpretation when, after expressing general exasperation, she asked both candidates: "What, if anything, would you have done to avoid the situation?" — a question that should have been addressed only to Newell.
Sarah Miller lives in Nevada County.
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